Anonymous Corporate Speech: a Phantasmagoria

In explicating the holding of the Supreme Court's recent Citizens United decision, Stanley Fish shows how the majority actually pulls its punch and engages in the kind of "consequentialist" thinking that animates the incredulous Justice John Paul Stevens's dissenting opinion. The truly principled conservative Justice, Fish reasons, would strike down, not only limits on corporate spending in political campaigns, but also the statutory disclosure requirements that the majority upheld. Only Justice Clarence Thomas, who filed a separate opinion explaining how speech may be chilled or speakers may self-censor if they know they may later face retribution for their speech, eschewed "consequentialist" thinking and played out principle the whole way.

I'm in a "consequentialist" frame of mind myself this morning, imagining, how would anonymous corporate speech impact corporate governance?

Let's suppose Justice Thomas's views were ascendant. It would be unconstitutional, then, for the SEC to require public companies to disclose their political activities. Goldman Sachs, GE, Google, you name them, might soon come to have "black box" expense aggregations, analogous to the secret budgets the federal government uses for intelligence and counter-terrorism activities.  

If a public-company shareholder wanted to know what political candidates or voter referenda her or his corporation was supporting, the board of directors might say to that shareholder, "We are protecting you from the ridicule that would fall on your head if anyone actually knew. But don't worry. We've got it under control, and as always we have your best interest at heart." (It's tempting to joke that shareholders would then know as little about corporate campaign expenditures as they now know about executive compensation!)

What about private companies, not subject to the disclosure regimes of the 1934 Act? Might not pesky shareholders wield state corporate codes and common law to inquire about what their company might be "speaking?" (The argument before the state judge could go like this: "We hear what's being said, your Honor. We'd just like to know whether or not we are the ones who are saying it.") Here again, though, the First Amendment might intervene. State corporate codes typically require that shareholders be given access to financial statements; but any expansion of such statutes to effect transparency of corporate campaign expenditures might have to be overturned as unconstitutional.

Lawyers would adapt. What the Supreme Court taketh away by limiting governmental power, we would replace utilizing the power of contract. New protective covenants would become a part of private financings. Political expenditures might be prohibited, except upon approval of the shareholders. It could be a kind of private, Fifth Amendment: "the shareholders of this corporation hereby instruct it to remain silent!"